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School funding lawsuit set for hearing today

The justices will be asked to determine whether they should intervene. Gov. Wolf says no.

This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.

A two-year-old lawsuit that seeks to revamp how schools are funded in Pennsylvania will come to the state Supreme Court today, with the justices hearing clashing arguments on whether they have the authority – and the obligation – to inject themselves into this critically important, but politically explosive issue.

The six school districts, seven parents, and two advocacy organizations bringing the case say that the justices have a legal and moral duty to take action. Represented by the Education Law Center and the Public Interest Law Center, the plaintiffs argue that in not doing so, the court is allowing the General Assembly and governor to evade their constitutional responsibility to guarantee a “thorough and efficient” education for all of Pennsylvania’s schoolchildren.

The state counters that school funding is a legislative responsibility and that the courts have no jurisdiction in the matter. Last year Commonwealth Court dismissed the suit on those grounds, and the plaintiffs are appealing that ruling.

Along with a wide array of supporters from the civic and religious communities, the plaintiffs, which include rural, suburban and urban districts, cite vast disparities in available resources among Pennsylvania’s schools and persistent achievement gaps among students of different ethnic groups and socio-economic status.

Calling Pennsylvania’s system for funding education “the nation’s most inequitable and irrational,” the plaintiffs’ 227-page brief says that “hundreds of thousands of students in low-wealth communities are being denied a basic education because their school districts cannot afford to provide essential services or repair crumbling facilities. … The availability of a basic education in Pennsylvania is now a function of community wealth rather than a constitutional guarantee.”

The Philadelphia District is not among the plaintiffs, but it filed an “amicus” brief in support of their position, and several of the parents in the case live in the city.

Past court actions in Pennsylvania on this issue have failed, with judges consistently ruling that the issue was “nonjusticiable” – essentially, that they had no authority to intervene. Meanwhile, the average funding disparities between rich and poor districts in Pennsylvania have grown to be the widest of any in the country, and the state share of education spending dropped to about a third, compared to a national average of 44 percent.

Those bringing this lawsuit believe that their legal argument this time has strengthened because the state has imposed academic standards on students and schools and it is possible to demonstrate that districts lack the resources to meet those standards.

They are also hopeful that three Democratic justices elected last year will bring a different approach to the issue.

Wolf opposes judicial intervention

But Gov. Wolf, a Democrat who campaigned on spending more money on education and has spent most of his term so far fighting with the Republican-controlled legislature over this, nevertheless takes the state’s official position that the courts should stay hands-off and let the political process work.

Wolf was not the original target of the suit; it was filed during the term of his predecessor, Tom Corbett, a Republican who slashed education funding during his one and only term.

Wolf first sought to be removed as a plaintiff, but when that request was denied, he filed a “supplemental” brief, separate from the state’s.

“Appropriating and distributing funds for the critically important work of educating Pennsylvania children are inherently and necessarily political questions that are beyond the jurisdiction of the court,” his brief says. The constitution “plainly and unambiguously requires that the General Assembly provide for the maintenance and support of a thorough and efficient system of public education.”

The judiciary, he says, cannot do what the plaintiffs are asking “without impermissibly intruding upon the prerogatives and functions” of the other branches of government.

Donna Cooper, executive director of Public Citizens for Children & Youth and policy chief during the administration of Gov. Ed Rendell, said that she believes Wolf is throwing away a huge opportunity.

“The years in which I was in the governor’s office, we always hoped someone would do this kind of suit so we could side with the plaintiffs,” Cooper said. Consistent opposition by Pennsylvania’s governors – of both parties – to these cases, which go back to the 1990s, has “not demonstrated to be an effective political strategy for schools or children.”

The state’s position also suggests “that the courts have no role in ensuring that the constitution is upheld. I think that’s a little insulting to the courts,” Cooper said. “Imagine if the courts took that position in Brown v. Board of Education,” the 1954 case in which the U.S. Supreme Court disallowed state laws that segregated schools by race.

She added that courts can no longer sidestep this issue because now there is “a ton of information” that demonstrates the consequences of unfair and inadequate funding, including data on what percentage of students can’t pass basic skills tests, high dropout rates, and significant numbers of high school graduates who need remediation in college.

In a case brought by the Pennsylvania Association of Rural and Small Schools (PARSS) in the 1990s, the court did not intervene in part because the plaintiffs could not easily prove that significant harm had resulted from their level of resources. PARSS is also a party in this current case.

Assessing what’s needed

During the Rendell administration, there was finally an effort to assess what districts actually require to meet the needs of their students – a so-called “costing out study” that found that statewide, about $4 billion in additional funds were required.

Jeff Sheridan, Wolf’s spokesman, reiterated the governor’s commitment to fair and adequate funding for all school districts, his work in helping to enact a new school funding formula last spring, and his role in driving more than $400 million in new state dollars to districts over the last two years.

The legislature did enact a formula during the spring that is predictable and takes into account student and district needs. But it applies only to new funding – this year, about 3 percent of the total – not to all education aid.

In his brief, Wolf emphasized that even with its limitations, the new formula directed between $580,735 and $6,089,365 in additional funding to the six districts that filed the case.

“This governor is not just talk,” Sheridan said. “He alone has elevated public education as the number one conversation in the state. When he took office, there was no fair funding formula; now there is a fair funding formula. Over a two-year period, we have invested $415 million more in public education, and we have targeted funds to some of the most distressed districts in the state.”

Sheridan said that Wolf knows that despite the formula and the increases “there is a long way to go” and that he will continue to fight for fair and adequate funding. “We don’t need the court to tell him to do that. He’s doing it because he believes it’s the right thing to do.”

But Cooper notes that court pressure can provide “a hammer” for reluctant elected officials.

“What happens in these court cases, they typically say, ‘governor and legislators, you have failed, come back with a remedial plan,’” Cooper said. “It forces parties to come to the table. And in raw politics, it’s much easier for a House or Senate member to say, ‘I had to raise taxes because the court said I had to.’”

The plaintiffs filed a response to Wolf’s argument.

Cases in nearly every state

School funding cases have been brought in almost every state. Historically, judges in Pennsylvania have been among the few who have declined to get involved at all.

New Jersey had two major cases going back to the 1970s in which the state Supreme Court ordered it to pour money into its 30 poorest districts, including Camden, so that they were spending at least as much as their suburban neighbors. The judges even ordered a vast expansion of preschool and closely monitored how money in these districts was spent.

Just on Wednesday, Connecticut Superior Court Judge Thomas Moukawsher issued a 90-page order, which he read from the bench, questioning the state’s entire educational system, from teacher evaluation to graduation requirements to high-stakes testing. He urged policymakers there to rethink the goals of schooling and devise new ways to achieve them so that students graduate with what they need to succeed in life and in careers.

As judges in Pennsylvania maintained their hands-off stance, funding disparities among districts grew. That is likely because for the last 25 years, the state’s system for distributing its education aid has had little rational underpinning.

In the early 1990s, the legislature decided to abandon a longstanding formula based on enrollment and other factors, including poverty. Instead, lawmakers decided to give school districts no less than what they received the year before and distribute additional funds according to a system that relied heavily on yearly political deals – not driven by the real needs of students, surges or declines in enrollment, or changing demographic profiles.

Pennsylvania, like elsewhere in the country, relies largely on property taxes to fund schools, with state aid meant to be a supplement and equalizer. If that aid doesn’t keep up with need, disparities grow and inequities get worse.

Beyond formulas?

Some advocates and organizations are beginning to promote the idea that a permanent fix to this problem may need to go beyond state funding increases or new formulas.

Along these lines, EdBuild, a relatively new organization focused on school inequity, recently did a study of all the school district boundaries in the country.

The study pinpointed the 50 “most segregating” district borders by race and income. Six are in Pennsylvania.

“Property taxes make no sense as a foundation for school funding, and they stand in the way of greater equity,” said Zahava Stadler, EdBuild’s manager of policy and research. “Low-wealth communities get trapped in a cycle of underfunding: First, school budgets are dependent on scant property tax revenues.”

Families leave for “better-resourced” districts, perpetuating a cycle that “concentrates poverty in the community and increases the neediness of schools, all the while further depleting the local tax base. … Poor districts are left poorer, and needy students are more isolated in high-poverty classrooms. This inequity needs a fundamental fix, either from the courts or from the legislature.”

Philadelphia, abutted by several wealthy districts that spend in some cases nearly twice as much as it does per student, has experienced this phenomenon.

“Philadelphia has a limited tax base to support its schools. At the same time, it must operate schools in a high-cost urban environment and is responsible for educating a disproportionate number of the Commonwealth’s needy, impoverished, and costly-to educate students,” the city says in its amicus brief.

“The City has taken extraordinary efforts to raise additional local funding for its schools, but those efforts have reached the limits of what its businesses and citizens can sustain. Additional state funding is the only solution to the City’s current school crisis.”

The arguments are scheduled for a City Hall courtroom at 9 a.m. today. Political, civic and religious leaders have scheduled a series of events were held on Monday and will take place today to drum up interest and mobilize support for change, including concerts, speeches, and rallies.

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