Green Fire Times

Victory for New Mexico Schools 2018:

Regis Pecos addresses the Yazzie lawsuit; its implications and opportunities.

By Regis Pecos

The First Judicial District Court has now validated and affirmed what countless reports commissioned over the years by the Executive branch, by Congress, by the State of New Mexico have concluded: the systems and institutions have failed Native American students miserably. What has been known and voiced by education advocates is now unequivocally supported and affirmed in the recent court decision. There has been a systemic failure creating the current systemic crisis. The decision is a watershed moment in education history, a landmark case in Indian education history.

There have been heroic efforts by our tribal leaders, Native American legislators and their allies and advocates over the years who labored and struggled to make inroads to build the foundation and framework that exists today. Their advocacy is exemplified by the development and adoption of an Indian education policy, the creation of an Indian education division, enacting the Indian Education Act, creating an Assistant Secretary of Indian Education, creation of an Indian education fund, amended statutes to make Indian languages a part of the heritage language family, forcing the state to acquiesce to the sovereign Indian nations to develop their own criteria and standards to certify Native language teachers. But resources to fulfill the promise of their vision always fell short.

Their efforts were further thwarted with No Child Left Behind and the Martínez administration’s education reform initiatives with high stakes testing and teacher evaluations, which all but marginalized the very foundation and framework that gave so much promise.

This promise and fundamental paradigm shift advocates were pushing were unseen since the 1890s when the first Indian education policy was unveiled with the creation of the boarding schools to implement the assimilation policy. The government’s mantra was, “The way you kill the language and culture is to remove children from their culture and deny them their language and culture.”

The federal government’s failure to assimilate Indians into mainstream society resulted in the shift to contract with states in 1934 with the enactment of the Johnson O’Malley Act, resulting in forced integration of Indian students into the public school system. This shift resulted in 90 percent of all Indian students in New Mexico today enrolled in public schools.

Designate Secretary of the Public Education Christopher Ruszkowski stated just a few months ago that the core values drawn from Manifest Destiny are what make education in America so great. With such statements, he could have been the author of the first Indian Education Policy. What this administration has subjected our children to is not fundamentally different from those dark days. It epitomizes the racial injustice and inequality that continue today.

We have come a long way, but statements like that from the highest-ranking education leader in the state show that little has changed since 1890. Thus, the lawsuit became the last and only means for justice and equality for our children. And now Judge Singleton has ruled that the State of New Mexico is in violation of its constitution.

Why is the decision in Yazzie a watershed moment?

Judge Singleton addresses the state’s failure with explicit references to Native American children page after page and cites how the state has failed to fulfill its constitutional obligations. Never before has there been such delineation and articulation with specific reference to Native American children in any legal case in New Mexico history. The ruling affirms that the state is constitutionally responsible for ensuring that all our students have an equal opportunity to succeed. It is a defining moment in a long struggle for justice and equity for all students.

Adequate Education Criteria Framework

“At the core, a constitutionally adequate education has been defined as an education that will prepare public school children for a meaningful role in society, one that will enable them to compete effectively in the economy and to contribute and participate as citizens and members of their (my emphasis) communities.”

Our dual citizenship status should force us to think how expansive this language is or can be. If this was the extent of the acknowledgement in the court’s opinion with indirect reference to Native American children, we could stretch the applicability of these definitions of an adequate education as dual citizens to apply to our societies, our economies and our communities in addition to our state citizenship. But the decision goes further and more directly and explicitly to cite violations against Native American children.

The Adequacy Standards in Education criteria framework that provided context are the following;

(i) sufficient oral and written communication skills to enable students to function in complex and rapidly changing civilization;

(ii) sufficient knowledge of economic, social and political systems to enable the student to make informed choices;

(iii) sufficient understanding of governmental processes to enable the student to understand issues that affect his or her community, state and nation;

       (iv) sufficient self-knowledge and knowledge of his or her mental and physical  

        wellness

       (v) sufficient grounding in the arts to enable each student appreciate his or her

        cultural and historical heritage.                

        (vi) sufficient training or preparation for advanced training in either academic      

        or vocational fields so as to enable each child to choose and pursue life work

        intelligently.; and

        (vii) sufficient levels of academic or vocational skills to enable public school

        students to compete favorably with their counterparts in surrounding states,

        in academics or the job market.      

It goes further to state, “Adequate education is one that prepares school children to be functioning members of the civic, cultural and economic aspects of our society.”

Relevant Statutory Authority

General Education Statutes

“The legislature has found that “no education system can be sufficient for the education of all children unless it is founded on sound principles that every child can learn and succeed.” The court draws from Relevant Statutory Authority that has made findings that the key to success is having a multicultural education system. It delineates the following;

  1. attracts and retains quality and diverse teachers to teach New Mexico’s multicultural student population;
  2. holds teachers, students, schools, districts and state accountable;
  3. integrate cultural strengths of its diverse student population into the curriculum with high expectations for all students;
  4. recognizes that cultural diversity in the state represents special challenges for policymakers, administrators, teachers, students;
  5. provides students with a rigorous and relevant high school curriculum that prepares them to succeed in college and the workplace;
  6. elevates the importance of public education in the state by clarifying the governance structure at different levels.

The Indian Education Act and Indian Education Policy contain all these elements. This framework is the heart of Rep. Lente’s legislative initiative that twice passed near unanimously and Gov. Martínez vetoed twice. The Pueblo Convocation recommendations speak directly to these articulated elements to be essential, relevant and necessary.

Statutes relevant to English Language Learners 

“In the Bilingual Multicultural Education Act the Legislature found:

  1. the bilingual Multicultural Education Act will ensure equal education opportunities for all students in New Mexico. Cognitive and affective development of students is encouraged by:
  1. using the cultural and linguistic backgrounds of all students in a bilingual  

       multicultural education program;

  1. providing students with opportunities to expand the conceptual and linguistic abilities and potentials in a successful and positive manner; and
  2. teaching students to appreciate the value and beauty of language and cultures.

The court makes reference to the difference between bilingualism and English Language Learners. They are not the same. It references the application of the federal Equal Educational Opportunities Act (EEOA) that declares unlawful “the failure by an education agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” The state is in violation.

Education Clause Claims

The Evidence Demonstrates that the Education Provided to At-Risk Students Is Inadequate

“The lack of appropriate instructional materials for Native American students presents its own problem. The New Mexico Indian Education Act requires that the state provide “culturally relevant instructional materials for American Indian students enrolled in public schools.” In the Court’s opinion, this statute sets forth the legislature’s determination of what constitutes adequate education for Native American children in New Mexico public schools; thus failure to comply with the NMIEA amounts to a violation of the constitution’s adequacy clause.”

‘The court believes that the weight of the evidence leads to the conclusion that the quality of teaching for at-risk students is inadequate.”

State Statutes Regarding Native American Students 

In the court’s opinion, “this statute sets forth legislative determination of what constitutes a constitutionally adequate education for Native American children…This failure to comply with the New Mexico Indian Education Act amounts to a violation of the Constitution adequacy clause.”

The court further states, “Culturally relevant education is produced through cooperation of schools and tribal communities.” In the Court’s opinion, “this has not been realized. Failure to develop the government–to-government relationships needed to achieve the statutory goals of the New Mexico Indian Education Act has not been realized in most districts with significant Native American student populations. There has been a failure to develop the government to government relationships needed to achieve the statutory goals under the Indian Education Act.”

Representatives at the Convocation identified these same issues as paramount to addressing the issues of equity for Native American students. The lack of these materials make it impossible to fully implement Native language programs without resources for appropriate instructional materials.

In reference to Title VI of the Civil Rights Act of 1964 requiring effective language assistance programs for Native American student English learners, New Mexico is not meeting these requirements experts testified. The court outlined the following failures on the part of PED;

  1. insufficient monitoring of students
  2. Director of Bilingual Multicultural Education did not know which schools were providing programs for ELL
  3. PED was not tracking Native American ELL students
  4. PED was not tracking training of teachers
  5. PED has not provided a framework for districts to use in providing multicultural education

“The director of Bilingual Multicultural Education did not know which schools were providing programs for ELLS; she testified that PED was tracking the number of Native American English Learners to determine if they were timely acquiring English.”

Quality of Teaching and Related Issues

The Court outlined the following;

  1. Districts do not have adequate resources for highquality teachers
  2. Districts with high at-risk students have high numbers of lowpaying teachers
  3. Highpoverty areas and other needs have serious difficulty recruiting and retaining highquality teachers
  4. Districts with these characteristics have high teacher turnover
  5. Impact of teacher evaluation compounds the cycle of teachers in lowperforming schools

The court concludes: “There is no effective metric to evaluate teacher effectiveness, providing relevant instruction to a Native American student even as there are statutory requirements.”

Why is the ruling so significant?

This ruling is particularly significant to Native American students. The state can no longer deny them equal opportunities. The court vindicates students’ constitutional right to a quality education. The decision strongly affirms that our children are deserving of the justice and equality sought in the lawsuit. The state must now answer decades of inaction. Our children are just as capable, have just as much potential as any other child. We must continue to fight for the constitutional right for a sufficient education for all children.

Expert Indian education advocates were called upon and their expert testimony and witness exposed the state’s inexcusable failings. The court acknowledged our evidence as valid: the state is denying our students the educational opportunities to which they are guaranteed by the New Mexico Constitution.

What’s next? The impact of the Pueblo Convocation

The outcome of the proceedings from the recent Pueblo Convocation, identifying the barriers, sharing what works and the development and articulation of recommendations could not have been more timely. They will serve to be profoundly valuable. The recommendations will serve to guide our collective efforts moving forward.

The recommendations for early childhood education, primary and secondary, higher education and the transfer of cultural knowledge are right in line with the court’s conclusion as to what will be necessary to fulfill the state’s obligation. The vision, wisdom and insights are unbelievably within the framework and the scope of the Honorable Judge Singleton’s decision.

The issues with building teacher capacity, responding to addressing the relevance in curriculum, resources to support the development of instructional materials, permanent funding for Native language programs, resource support for building teacher capacity, resource support for materials and curriculum development, resource support for wrap around services, institutionalization for college readiness programs, responding to the school to prison pipeline as a result of education system failures, investment in expansion of tribal libraries to support after school-community based student services, governance restructuring and accountability and strengthening communities, school and higher education relationships through agreements and protocols among other recommendations will be critical to advance in the next stage in the process both administratively and legislatively.

The court has spoken. It has spoken in our favor.

What will be your contribution?

Regis Pecos (Cochiti Pueblo) is co-director of the Santa Fe Indian School’s Leadership Institute.