William Penn-led funding lawsuit isn’t ‘moot,’ argue lawyers
The Philadelphia-based law firms representing over a dozen petitioners in an education funding lawsuit against the state have filed their response with the Commonwealth Court of Pennsylvania why the case is not legally moot, citing a $155 million drop in funds for classroom expenses since 2013 and the expanding gap of spending between wealthy and poorer school districts.
The Public Interest Law Center and the Education Law Center – with assistance from the firm O’Melveny & Myers LLP - filed a 112-page response to the court Friday morning in the case William Penn School District et. al. v. Pennsylvania Department of Education et. al. to rebut the preliminary objection brought by co-defendant state Senate President Pro-Tempore Joe Scarnati, R-25 of Jefferson County, challenging the constitutionality to provide a fair and equitable education system.
At the core of the petitioners’ argument is Act 35 of 2016, which established the use of a basic education funding formula created and approved by the bi-partisan Basic Education Funding Commission. This formula takes into account the number of children in a district who live in poverty, enrolled in charter schools, English language learners, and other demographic identifiers to appropriately allocate money to districts to ensure districts are equal. In use since the 2015-16 budget, only new funds added to the basic education budget line item – $538 million dollars from $6 billion for 2018-19, according to the Pennsylvania Department of Education – are applied to the formula and distributed as appropriately to the state’s 500 districts. Scarnati has said the fair funding formula that has been enacted since the suit was filed in 2014 has fixed the state’s funding problem, declaring the case moot.
“Intervening legislation like Act 35 cannot render a claim moot if it does not actually address the underlying problem—here, Respondents’ failure to adequately fund public education,” read a portion of the response.
Petitioners argue that from 2014 to 2017, the unreimbursed district contributions to the state pension program have increased $867.6 million dollars, while basic education, special education and Ready to Learn Block grants in that same timeframe have increased $712 million, an overall loss of $155 million for classroom expenses.
Petitioners William Penn and Wilkes Barre school districts have lost up to 10 percent of their teaching staffs in the last few years, Shenandoah Valley School District cannot provide busing to all of its students and a middle school in Greater Johnstown had to close because it could not afford repairs, all due to lack of appropriate funding.
In the classroom, performance on state-mandated assessment tests show the majority of students in poorer school districts not earning a proficient (passing) score in the testing areas of algebra I, literature and biology.
“These poor student outcomes, as well as the overwhelming evidence of ongoing resource, staff, and curriculum deficiencies, lay bare the hollowness of Respondents’ mootness argument,” read the argument. “Act 35 failed to increase statewide education funding, failed to provide Petitioners and other school districts with the basic resources they need to provide a thorough and efficient education, and, predictably, failed to meaningfully improve student performance by any measure.
Additionally, the petitioners argue that with new money added each year to the basic education fund, and, thus, applicable to be apportioned by the fair funding formula, some of that money is already earmarked to certain districts.
Mark Price, a labor economist with the Keystone Research Project, wrote in his affidavit about a law signed in 2017 that will add $14 million annually to the low-wealth Erie City School District, claiming that money will come from the $100 million added to the basic education funds for 2018-19. Additionally, with the signing of Act 35, emergency funds in the amount of $3 million and $12 million will be awarded annually to the base funding of financially-distressed Wilkinsburg and Chester Upland school districts, respectively.
Because the state funds approximately 35 percent of public education, school districts rely overwhelmingly on their local tax bases to supplement their budgets. The argument shows that the seven petitioning districts spend an average $9,900 per student, lower than the average $15,748 spent by the state’s 100 wealthy districts. The gap in average per student spending from 2013 and 2017 by the 100 hundred poorest districts and wealthiest districts is reported to have increased from $3,000 to almost $3,800.
Further, the petitioners’ equalized tax millage rates are substantially higher than the richer districts with William Penn having the highest in Delaware County and among its co-petitioners by at least four millage points.
“As a result (of inadequate funding), low-wealth districts continue to pay higher taxes while having radically less to spend on the State’s neediest students,” read the argument.
The argument added, “But because the BEF ‘base’ is fixed in perpetuity and excluded from the formula, many lowwealth districts will continue to get less than the General Assembly’s own formula holds they are entitled to.”
Attorney Michael Churchill of the Public Interest Law Center said in a prepared statement after the response was filed that only the most wealthy districts can make up for financial drain while poorer district have the highest tax and struggle to provide the most basic resources.
“Any suggestion that the Legislature fixed these problems with the formula is absurd,” he said. “If the Legislature continues to shortchange schools, a child’s opportunities will continue to be determined by the accident of their zip code.”
Lawyers said in their argument that each delay in proceedings to go to trial there is only a minor change in yearly appropriations for education.
“While such an argument (for mootness) might have merit if Act 35 had actually remedied Respondents’ ongoing constitutional violations and solved the funding problems identified in the Petition,” read a portion of the response,” Act 35 did no such thing. Indeed, contrary to Respondents’ repeated assertions, Act 35 did not ‘replace’ or ‘supplant’ the school funding scheme. It enshrined the existing scheme’s inadequacy and inequity in perpetuity.”
The conclusion said that children in low-wealth districts will continue to attend crumbling schools with outdated teaching materials and limited access to basic resources like librarians and nurses.
“These children and their school districts continue to have a stake in the outcome of this lawsuit, which aims to remedy those problems and the State’s ongoing constitutional violations. Accordingly, the Court should deny Senator Scarnati’s mootness application and permit this case to move swiftly toward trial.”
Mootness was the only preliminary objection Commonwealth Court Judge Robert Simpson completely upheld in a memorandum opinion he released in May that allowed the petitioners 60 days to file a response. Simpson overruled objections brought by the state’s executive-level respondents in regard to sovereign immunity and separation of powers doctrine, but he allowed limited discovery on constitutional rights and judicial scrutiny to be applied in the case. The latter two objections will eventually be overruled outright.