Suit calls state school funding arbitrary and irrational

Nov. 23, 2014 – By Eleanor Chute, Pittsburgh Post-Gazette – In 1999, the state Supreme Court ruled that the question of state school funding was a political issue for the Legislature, not one for the judiciary.

Now, a new lawsuit filed in Commonwealth Court last week once again seeks a judicial order, this time armed with state test results showing schools failing to meet state academic standards and a study commissioned by the Legislature quantifying the disparity in resources.

The latest complaint called the current funding system arbitrary and irrational, saying, “Students in property- and income-poor districts are not given an opportunity to receive an adequate education where all students can meet state standards, while their peers in property- and income-rich districts receive a high-quality education.”

The latest suit was filed by the Education Law Center and Public Interest Law Center of Philadelphia on behalf of six school districts, parents of schoolchildren, the Pennsylvania Association of Rural and Small Schools and the Pennsylvania state conference of the NAACP.

Co-counsels Michael Churchill from the Public Interest Law Center and Cheryl Kleiman of the Education Law Center said work on the case began about a year ago with many complaints about state funding.

The complaints around the state have grown since 2011 when federal stimulus money dried up and state allocations to many districts — particularly to poor districts — fell.

Their question, Mr. Churchill said, was: “Isn’t it possible to do something about this terrible situation?”

The law centers checked with school districts and associations and found support for a new suit.

When he asked his district to join the suit, former state education secretary Gerald Zahorchak, now superintendent of Greater Johnstown School District in Cambria County where 49 percent of students scored below proficient in reading, said, “Before I could get the question out of my mouth, they voted unanimously.”

The other five school districts which signed on are William Penn in Delaware County, Lancaster, Panther Valley in Carbon County,Wilkes-Barre Area in Luzerne County, Shenandoah Valley in Schuylkill County.

In old and new cases, the plaintiffs turned to the article of the state constitution which says: “The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the commonwealth.”

In the latest case, the plaintiffs also included the equal protection clause in the state constitution, arguing the clause means the state must finance the public education system in a “manner that does not irrationally discriminate against a class of children.”

‘More unequal than ever’

In the years since the Supreme Court ruled, much has changed, said Ron Cowell, who became of president of the Education Policy and Leadership in 1999 after serving 24 years in the Legislature.

“The stakes for children, for teachers, are greater than ever before, and meanwhile, the system has become more unequal than ever before and terribly inadequate in many districts throughout the state where the kids simply don’t have a chance to succeed,” said Mr. Cowell, who is not a party in the suit.

Arnold Hillman who worked as consultant for plaintiffs in the first case, found the Supreme Court decision a “great shock” and expected another suit to be filed eventually.

“I suspected that as soon as a new crop of school people came aboard and the old people were off to the side, someone would say, ‘What in God’s name is this $5.5 billion distributed in basic education funding with no rhyme or reason?’ ”

In 1991, the Pennsylvania Association of Rural and Small Schools, a coalition of rural and poor school districts for which Mr. Hillman was a consultant, filed suit against the state for the way it distributed resources. The plaintiffs also included students and eight school districts, including Clairton and Duquesne. Mr. Hillman said that ultimately about half of the districts in the state signed on.

The Philadelphia School District later also filed a suit challenging the way the state funded public schools.

In 1999, the Supreme Court ended up ruling on both, saying it wasn’t an issue for the judiciary to consider. Courts in some other neighboring states with similar clauses in their constitutions had deemed it their responsibility.

Before the high court ruling, Dan Pellegrini, then a Commonwealth Court judge and now its president judge, issued a ruling in 1998 on the merits of the PARSS case, not only on whether the judiciary could consider it.

In his ruling, Mr. Pellegrini wrote that, to meet its burden, PARSS would have had to show that the “present system of funding education produced the results that a substantial number of districts did not have funds to provide a basic or minimal education for their children.

“Such a system would not have been rationally related to any state interest and would have violated the Education Clause mandate for the state to provide for the maintenance of a thorough and efficient system of public education.”

He said PARSS failed to meet that burden.

“Not one of PARSS’s witnesses testified that any of the children in their districts were receiving an inadequate education. In fact, superintendents of various school districts testified as to the impressive efforts they were making to educate students in their districts, even though, like all of us, they wanted more resources to do an even better job.”

Mr. Pellegrini wrote, citing another decision, that “when a school district is providing a basic education … if it wants to provide more, it is matter within the discretion of the local school board or the General Assembly to provide those resources.”

If the latest case leads to the consideration of its merits, it is unlikely superintendents will testify about what a great job they are doing despite limited resources.

Mr. Hillman, who said one on the differences this time is school districts have had money taken away, said he heard one of the superintendents in the new suit speak. “He came very close to saying that it’s really destroying your school district.”

New data to bolster arguments

Now the plaintiffs have data to back testimony about how many students are below proficient on state standardized tests, just how far below adequate their resources are and how many teaching jobs and academic programs they had to cut as state and federal funding fell.

Now there are Pennsylvania System of School Assessments tests in reading and math covering grades 3-8, PSSAs in science and writing in selected grades, and end-of-course Keystone Exams, part of a state graduation requirement, in Algebra 1, literature and biology at the secondary level.

In addition to tests, the state in 1999 added statewide academic standards, which since have been expanded and revised. Before that, the complaint notes, the state “had no established standards by which a thorough and efficient system of education could be objectively measured.”

By having the standards, the complaint states, the General Assembly articulated “what an adequate public education system must accomplish.”

With state tests and standards, the state also began holding school districts, teachers, principals and administrators accountable for students’ meeting those standards.

The complaint notes the Legislature adopted a statute saying the district must “employ the necessary qualified professional employees, substitutes and temporary professional employees” to enforce the curriculum requirements, which include the arts, physical education, special education, gifted education and programs for English language learners.

The complaint notes a statewide survey saying 75 percent of school districts reduced instructional programming in 2013-14 and many made other cuts, resulting in larger class sizes or fewer librarian, counselors, nurses and paraprofessionals.

In addition to standards and tests, the state also established how much an adequate education would cost.

In 2006, the complaint notes, the Legislature told the state Board of Education to undertake a costing-out study looking at adequacy and equity to find “the basic cost per pupil to provide an education that will permit a student to meet the state’s academic standards and assessments.”

The result of that study found districts needed $4.38 billion more than actual spending in 2005-06 to reach performance expectations, noting the monetary needs were larger in the poorest districts and lowest in the wealthiest.

As a result of that study, the state began in 2008 to phase in a new funding formula, but, when federal stimulus money ended in 2011, the new formula was abandoned and many school districts faced lower funding, with the poorest districts losing the most per student.

The complaint notes that state funding accounts for 34.2 percent of the cost of public education, one of the lowest percentages in the nation. The rest is made up largely of local sources. In 2012-13, the total spent per student ranged from $9,803 in Mount Carmel Area in Northumberland County to $28,418 in Newport in Perry County.

In addition, the complaint notes that the state in 2006 began limiting how much school districts could raise property tax without a voter referendum.

The suit comes at a time when the a Basic Education Funding Commission created by the Legislature is conducting hearings.

It also comes after about 50 organizations formed the Campaign for Fair Education Funding to push for an adequate and equitable funding system.

And the filing is shortly after Gov. Tom Corbett was defeated at the polls by Tom Wolf in a race where education funding was a major issue.

Mr. Cowell said he views the suit as “part of a multi-faceted strategy to try to get the Legislature to do a fix.”

Ms. Kleiman of the Education Law Center isn’t willing to wait to see if other efforts pan out.

“It’s not about who is governor or which party has power. We are asking the courts to uphold the constitution,” she said.

Details on the suit can be found at edfundinglawsuit.wordpress.com.

Read the story on the Post-Gazette website.