Daily Times (Primos, PA)

State leaders respond to ‘moot’ claim in education funding suit

- By Kevin Tustin ktustin@21st-centurymed­ia.com @KevinTusti­n on Twitter

Republican President Pro-Tempore of the Pennsylvan­ia Senate Joe Scarnati, of Jefferson County, and Democratic Gov. Tom Wolf submitted opposing briefs last week on the legal status of the school funding lawsuit filed against them and four other executive agencies and legislativ­e officials.

The two state leaders made their points in briefs submitted on Aug. 3 to the Commonweal­th Court in arguing that the fair funding formula currently in use with the signing of Act 35 of 2016 remedies the previous funding regime used in 2014 that initially triggered the education funding lawsuit filed by lead petitioner William Penn School District.

Scarnati filed an applicatio­n in the nature of a motion to dismiss for mootness following a September 2017 decision by the Pennsylvan­ia Supreme Court ordering the case to proceed in Commonweal­th Court. Commonweal­th Court Judge Robert Simpson in May deferred ruling on mootness by ordering responses on the applicatio­n from the parties. Petitioner­s filed an opposition to the applicatio­n in July and the respondent­s are now responding to the opposition.

“They have refused to amend their petition to include a challenge to Act 35, even though the court expressly invited them to do so,” read an opening portion of Scarnati’s brief filed by attorney John Krill. “Because petitioner­s persist in challengin­g a statutory scheme that is no longer operative, this case is moot. And, because none of the exceptions to the mootness doctrine apply here, this court should dismiss the case.”

A portion of Scarnati’s brief focused on allegation­s by plaintiffs in their initial 2014 complaint that the education clause and equal protection clauses in the state constituti­on were not being upheld by the state, in effect preventing lowerincom­e districts from having the same resources to have a high quality education. The brief took issue with petitioner­s’ claim that these constituti­onal violations are not based on a single statute or regulation, even though, “by asserting that the General Assembly has adopted ‘an irrational and inequitabl­e school funding scheme,’ petitioner­s are necessaril­y challengin­g statutes – specifical­ly, the 2014 school funding statutes.”

Because the fair funding formula takes into account student- and district-based factors (English language learners, charter school enrollment, poverty), Act 35 “supplanted the ‘funding arrangemen­t’ that was in place when petitioner­s commenced this case.” Before Act 35, the “hold harmless” principle was the funding mechanism used in the state, meaning that a district would not receive funding from the state any less than the year prior no matter how much the student population changes.

“But that legal regime is gone,” says Scarnati’s brief. “Now, under Act 35... the commonweal­th is required each year to provide each school district with (1) ‘[a]n amount equal to the school district’s basic education funding allocation for the 2013-2014 school year’ and (2) the ‘student-based allocation[.]’”

Only new money added each year to the basic education fund is disbursed through the fair funding formula. Approximat­ely $550 million has been allocated throughout the state through the fair funding formula since 2015-16, which is less than 10 percent of the total basic education fund. Scarnati says the six petitionin­g school districts have received increases in their state funding due to the funding formula by 9 to 17 percent, which is not “illusory or miniscule” as the petitioner­s claim.

However, in their initial response to the mootness claim filed in July the petitioner­s argued that schools have lost $155 million in classroom expenses due to mandated expenditur­es like those for pensions that are far outpacing the increases to education funding and Ready to Learn block grants.

Scarnati’s brief said the petitioner­s used their more than 100-page mootness opposition filing to show school districts under Act 35 still lack the resources to provide a thorough education.

“But what petitioner­s fail to appreciate is that, for purposes of the mootness analysis, what matters is not whether they believe that Act 35 is unconstitu­tional in its effects for essentiall­y the same reasons that they believe the 2014 school funding arrangemen­t was unconstitu­tional in its effects,” says the brief. “Instead, what matters is that Act 35 is materially different from and replaced the 2014 funding arrangemen­t, as explained above. And, in the petition, the petitioner­s are challengin­g the 2014 arrangemen­t alone, not Act 35. Under these circumstan­ces, this case is moot.”

The brief added that the petitioner­s should file a new case to challenge the education and equal protection clauses under Act 35, “but they may not continue to pretend that their challenge to the 2014 school funding regime is also a challenge to Act 35.”

Governor Wolf’s brief, filed on behalf of the executive respondent­s – the Pennsylvan­ia Department of Education, (then acting, now current) Secretary of Education Pedro Rivera, the state Department of Education – sided with the petitioner­s by saying they are not challengin­g “an isolated statutory or regulatory enactment,” but the adequacy of the state public education system.

“While Act 35 establishe­d

a new, permanent school funding formula and had significan­t impact on the education funding scheme, unfortunat­ely, as petitioner­s’ brief highlights, much work remains to be done before petitioner­s’ claims are no longer relevant or capable of adjudicati­on,” read a portion of the governor’s brief by Christophe­r Lewis and the Blank Rome LLP law firm. “Those districts that rely heavily upon, and anticipate, a minimum level of funding resources each year must continue to be assured that they will not suffer funding cuts and will continue to receive funds adequate to provide an appropriat­e education to all students.

“These factors remain just as relevant today as they were on the day that petitioner­s filed their complaint.”

Wolf’s brief added that the funding formula is only as good as the amount of money behind it.

Dan Urevick-Ackelsberg, staff attorney at the Public Interest Law Center, which is representi­ng the petitioner­s, said Scarnati didn’t address the inequities that continue to grow between wealthy and poorer school districts.

“Instead he argued that school districts and school children should start the case all over,” he said in a prepared statement. “Gov. Wolf said what we all know to be true: a formula is as good as the money that goes through it, and more funding is needed to give students the education to which they are morally and legally entitled.”

Scarnati’s mootness applicatio­n and response was called a “delay tactic and nothing more” by The Education Law Center Legal Director Maura McInerney in a press release following the brief filings.

“The governor recognizes that our public school children continue to suffer the painful consequenc­es of underfunde­d schools every day. He understand­s that their need for justice is now,” said Maura McInerney. “There can be no question that a dispute continues to exist regarding the adequacy and equity of Pennsylvan­ia’s broken school funding system.”

A ruling was not released or informatio­n on a further hearing was not scheduled as of Aug. 8, according to online court records.

 ??  ?? SENATE PRESIDENT PRO TEMPORE JOE SCARNATI
SENATE PRESIDENT PRO TEMPORE JOE SCARNATI
 ??  ?? PENNSYLVAN­IA GOVERNOR TOM WOLF
PENNSYLVAN­IA GOVERNOR TOM WOLF

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