Lawsuit: School Funding in Pennsylvania is Unconstitutional

Nov. 10, 2014 – By Patrick Kerkstra, Philadelphia Magazine – Seventeen years ago, the city and School District of Philadelphia filed suit against Pennsylvania, accusing it of failing to provide sufficient education funding in violation of the state Constitution, which obligates the state legislature to “provide for the maintenance and support of a thorough and efficient system of public education.”

It didn’t work. Commonwealth Court rejected the suit, and the state Supreme Court in 1999 refused to hear an appeal.

One of many striking elements of this suit is that the School District of Philadelphia — which would be among the greatest beneficiaries of a successful lawsuit — is not among the plaintiffs.

The six school districts that are plaintiffs are a carefully assembled, geographically diverse mix including William Penn (the Delco ’burbs), Lancaster, Panther Valley (Carbon County), Greater Johnstown (Cambria County), Shenandoah Valley (Schuylkill County) and Wilkes-Barre. Also suing are the state NAACP, the Pennsylvania Association of Rural and Small Schools, and handful of families with children enrolled in public schools.

If the lawsuit is successful, the result would likely be significantly more state investment in K-12 education, and a funding formula that smoothes out, at least to a degree, the wild per-pupil spending disparities between, for instance, Lower Merion School District ($26,491 in 2012-2013) and Greater Johnstown ($14,871).

Just how much more money could we be talking about? Well, as the lawsuit notes, in 2007, a state “costing out” study concluded that 95 percent of the state’s school districts were underfunded, and that closing the shortfall would require about $4.4 billion (or about $5.1 billion in 2014 dollars). For some perspective on the size of that shortfall, the` entire budget for the School District of Philadelphia is $2.6 billion.

Could the Supreme Court really order the state to come up with billions of dollars of new funding for public education? New Jersey’s Supreme Court did. In 1990, the court ruled that the state had provided inadequate and unequal funding for students in urban districts, a ruling that led in part to a $2.8 billion tax hike. Now, urban districts in New Jersey are as well or better funded than their suburban counterparts, an investment that has yielded mixed results.

But New Jersey’s judiciary has historically been far more progressive and activist than has Pennsylvania’s. Securing new funding and a new formula through the courts is likely to be a far more difficult proposition for educative advocates here.

The Argument

The lawsuit rests on just a few clear arguments.

• The state has ultimate responsibility for providing an education, and it cannot completely delegate that duty to local school districts.
• Low income school districts lack the resources to enable their students to meet state mandated standards, such as the Keystone Exams, which are slated to become a graduation requirement for all students beginning in 2017.  “Yet over 50% of students in the Commonwealth are currently unable to pass the Keystone Exams. Many of those students will leave high school without a diploma, hindering their ability to enter the workforce or ‘serve the needs of the Commonwealth.’ The existing system of public education is therefore neither thorough nor efficient, as measured by the Commonwealth’s own academic standards and costing-out study.”
• By delegating so much of the funding burden to local districts, the state has preordained funding disparities: “This unconscionable and irrational funding disparity violates the Equal Protection Clause because it turns the caliber of public education into an accident of geography: Children in property- and income-poor districts are denied the opportunity to receive even an adequate education, while their peers in property- and income-rich districts enjoy a high-quality education.”
• The differences in funding levels is not tied to the gap in student needs: “To the contrary, those students with the highest needs (e.g., English-language learners, students living in poverty) receive the fewest resources to prepare them to succeed.”
• Low-income communities cannot close the funding disparity on their own. “In fact, many low-wealth districts have higher tax rates than property-rich school districts. In other words, it is not tax effort that explains the difference in funding. Rather, these underfunded districts are in areas so poor that, despite their high tax rates, they simply cannot raise enough money to improve education without more assistance from the state.”

Why It Might Work

What’s changed since 1999? A lot, say education funding advocates.

Perhaps most critically, the state has developed comprehensive school assessment systems and a graduation exam. The plaintiffs argue that these new requirements “define precisely what an adequate education entails.” This matters, because one of the rationales used by the the Commonwealth Court in 1999 for tossing out the suit was that the Court could not be expected to define what constitutes a “thorough and efficient education.” The plaintiffs argue now that the state has done exactly that (with its testing regime and graduation requirements) and the court can rely on the state’s own definition.

We now know about how much an “adequate” education would cost, the plaintiffs say, thanks to the 2007 costing-out study. That wasn’t the case in 1999.

Those are the key differences in the legal argument. Perhaps more important, though, are the political changes that have taken place since 1999. Such as:

• The changing public mood on education funding. Public opinion polls have consistently placed school funding near the top of Pennsylvanian’s list of worries, and school funding crises were a key contributor to Corbett’s defeat this month. Judges are not immune to public opinion, particularly in an elected judiciary.
• The plaintiffs are being represented by a bevy of talented lawyers working with the Education Law Center and the Public Interest Law Center of Philadelphia, two organizations with long experience in exactly this sort of high-stakes litigation.
• Beginning in January, the state Department of Education — one of the defendants in the suit — will be led by appointees named by Governor Wolf. Given Wolf’s interest in increasing school funding, they may well choose to be supportive of the lawsuit. Corbett’s Department of Education clearly would not have been.
• Philadelphia isn’t the poster child this time. That can only help, given the city’s reputation in much of the rest of the state.
• When not embarrassing itself through feuds and scandal, this Supreme Court has repeatedly shown itself to be something of a wild card, with justices that, from time-to-time, have ruled against the partisan leanings of their parties.

Why It Might Not

All of that may not be enough, for one simple reason. Pennsylvania courts have consistently considered education funding to be the province of the legislature, not the judiciary. “These are matters which are exclusively within the purview of the General Assembly’s powers, and they are not subject to intervention by the judicial branch of our government,” the Commonwealth Court wrote in 1999. Can the plaintiffs convince the court this time that it was wrong in 1999?
Read more on Philly Magazine’s website.